Editor’s Note: We are pleased to be promote this AJIL UnboundSymposium on the Constitutionalization of International Law in Latin America. AJIL Unbound is the online scholarly companion to the American Journal of International Law. This Symposium, including a thematic introduction and four essays, addresses a subject of interest to scholars of public law and we are delighted to be part of the conversation.

Introduction to Symposium on the Constitutionalization of International Law in Latin America

Alexandra Huneeus

Had one been pressed, in the mid-1980s, to characterize Latin American approaches to constitutional law and international law, the terms “sleepy” and “sovereigntist” might have come to mind: “sleepy” because judicial review was rare; and “sovereigntist” because ever since declaring independence in a world of colonial powers, Latin American states had asserted a robust version of sovereignty (enshrined, for example, in the Montevideo Convention on the Rights and Duties of States of 1933) and, accordingly, a dualist relation between domestic and international law.

Today, these terms no longer fit. It is still possible, and perhaps even easy, to find a lower judge in rural Mexico bent on strictly applying domestic law alone, or a high court judge in Caracas who sidelines international human rights law under the banner of sovereignty. But if one considers constitutional texts and the practice of the region’s judiciaries overall—including high court judges in Bogotá, Brasilia, Buenos Aires, Lima, Mexico City, San Jose, and Santiago—it is clear that the approach to law in general, and to constitutional and international human rights law in particular, has been decisively transformed.

The changes began in 1988 toward the close of the Cold War, when a wave of new constitutions[1] and interpretive theories began to usher in U.S.-style judicialreview (whereby courts claim power to strike down legislation under higher-ranked law).[2] Latin American rights review, however, developed a dimension absent in U.S. practice. Not only did courts in the region strike down legislation under national constitutions, they began to do so under international human rights treaties as well. Constitutional review became a window through which judges could access, interpret, and directly apply international treaties ratified by the state. Today, while those in the United States are barred from suing under human rights treaties, many Latin Americans have standing to directly challenge laws under treaty-based human rights in domestic court. As in Europe, the meaning of the American Convention on Human Rights (ACHR), the Indigenous and Tribal Peoples Convention, the Rome Statute and other treaties are being worked out, and their influence felt, through myriad local disputes around the region, regardless of whether these disputes ever reach an international body. And as in Europe, courts around the region cite to each other and to the Inter-American Court of Human Rights (IACtHR) in their rulings, creating a shared transnational jurisprudence on human rights law.

Many applaud these changes as a progressive development that helps entrench the rule of law, protect rights and deepen democracies. But there are voices on the Right and Left alike that seek to quell if not reverse their advance. Both sides note with irony that the practice of strong-form judicial review, which is after all an antimajoritarian form of authority, took root just as democracy spread in the region.[3] Even those who generally accept constitutional review as a legitimate check may balk at the practice of striking down legislation under treaties, using the jurisprudence of foreign judges. For progressives with a sense of history, it is unclear in what universe Latin American judges could possibly be trusted to act as a progressive force. And for conservatives, it is hard to accept that priority be given to a body of law which, until recently, was viewed as a political (as opposed to legal) doctrine animated by progressive ideals.

This Symposium aims to introduce U.S. scholars and practitioners to this vibrant and controversial new era of global human rights law in the Americas.[4] The Symposium gathers four key thinkers and asks them to reflect on one of its most effervescent sites: the interaction of the Inter-American Human Rights Court and domestic judiciaries. Taken together, the essays provide insight into the transformation of what was once a region of legalist interpretive theory and sovereigntist states into a more cosmopolitan, integrated and rights-oriented legal realm.

While similar changes have unfolded in Europe, Latin American practice has developed new legal forms, and reveals that rights law can become integrated across boundaries even absent economic integration. The changes, moreover, have implications beyond law. To understand most political struggles in Latin America today—be it the Mexican government’s effort to curb drug-gang violence; the peace process in Colombia; or battles over mining, oil, and forestry projects the region over—a grasp of the new relation between constitutional and international law and courts proves vital.

The Four Essays

The Symposium begins with two essays that reflect on the doctrine of conventionality control, which is in some ways the high-water mark of the constitutionalization of human rights law in the Americas. Conventionality control refers to the practice by which domestic courts review legislation not only under constitutional texts, but also directly under an international treaty. In Almonacid v. Chile (2006), the Inter-American Court of Human Rights announced that all judges must review domestic laws for conformity to the ACHR. If there is a conflict, the Court held, the domestic law cannot be applied.

This interpretation of the American Convention marked a sea change. In the past, it was clear that states, as a whole, were subject to and had duties under the ACHR. But what this duty meant for distinct actors within the state depended on domestic law. While, as discussed above, many judiciaries in the region already reviewed laws for conformity to human rights treaties, they did so because their domestic constitutions mandated or allowed it. Thus, the Argentine constitution of 1994 granted the American Convention constitutional rank in a system of diffuse constitutional review.[5] Chile, by contrast, had a more concentrated system of review, and most judges viewed themselves as bound to apply legislation. With Almonacid, the IACtHR seemed to be saying that all states had to be more like Argentina—constitutional texts notwithstanding. The Court rendered the growing practice of judicial review under the American Convention a legal obligation.

In the first essay, Inter-American Court judge and Mexican scholar Eduardo Ferrer Macgregor explains the evolution and grounding of the Inter-American Court’s doctrine of conventionality control, arguing for its legal legitimacy and positive political consequences.[6] Judge Ferrer is one of the most distinguished advocates of this doctrine, and had written extensively on it before assuming his judgeship.

In a response essay, scholar and Inter-American System lawyer Ariel Dulitzky counters that, through its understanding of conventionality review, the Inter-American Court has usurped too much power.[7] By reading the ACHR as establishing a constitutional system with itself as peak court, the IACtHR squelches the input of domestic judiciaries into the development human rights law. He proposes an alternative ordering in which the IACtHR and fellow domestic courts together develop ACHR jurisprudence through a judicial dialogue among equals.

While the first two essays reflect on what might be termed the constitutionalization of the American Convention on Human Rights, the third turns to the concomitant internationalization of constitutional law. As national courts develop jurisprudence on human rights, they borrow from and build on each other as well as the Inter-American Court. This regional judicial dialogue has intensified in recent years. Armin von Bogdandy, one of the figures who has spearheaded scholarship on this judicial exchange from the distant vantage-point of the Max Planck Institute, describes the emergence of a ius constitucionale commune en America Latina (ICCAL)—a shared law of fundamental rights in the Americas.[8] Bogdandy’s essay introduces the concept of ICCAL, and argues for its value as a progressive force. Even as he notes the pitfalls and possible criticisms such a conception of law could engender, he imagines that the development of a core set of shared constitutional guarantees through transnational judicial dialogue can help offset some of the region’s ills, such as economic inequality, corruption and discrimination.

Bogdandy’s ICCAL resonates with both Judge Ferrer’s argument in favor of conventionality control and Dulitzky’s vision of a robust judicial dialogue on human rights norms: for all three, the courts have an important role to play in the construction of a shared rights-based jurisprudence. ICCAL’s claim is that it will result in progressive, political change even as it remains well within the liberal bounds of traditional constitutional democracy.

Roberto Gargarella’s essay calls this optimism on rights into question.[9] Through the lens of the case of Gelman v. Uruguay, the Argentine theorist argues that the problem with conventionality control is not that it squelches the role of domestic judiciaries, but that it squelches democracy itself. The Gelman case forms part of a string of celebrated IACtHR cases striking down amnesties in the region. But Uruguay’s amnesty, Gargarella argues, was different. In contrast to those of Brazil, Chile, Peru, and Salvador, it was not promulgated by an authoritarian regime attempting to shield itself from prosecution. Rather, Uruguay’s amnesty was passed by a democratic successor government. It was then upheld by two popular referenda held two decades apart. It is hard to imagine a law with a more solid democratic pedigree. Gargarella systematically argues against this usurpation of deliberative democratic decision-making by an international rights court, suggesting that a more fluid, dialogic interaction with the political branches would be more appropriate. His discussion of Gelman forms part of a broader critique of Latin America’s human rights turn as prioritizing judicial over democratic deliberation, punishment over other forms of reproach, and lists of rights over more effective constitutional reforms.

Conclusion

Recentscholarshiphas sought to rescue the historical role of Latin American states in creating the postwar world order, and on insisting that it emphasize human rights.[10] Latin American states, for example, created the world’s first international human rights declaration (the American Declaration of Rights and Duties of Man); and played an important role in ensuring that the UN Charter make mention of human rights, and in insisting on a universal rights declaration. New scholarship also emphasizes the role of Latin American actors, and the human rights system of the Organization of American States (OAS), in the human rights turn in transnational activism starting in the 1970s.[11] While it may not make sense today to argue for an American International Law—something for which Chilean jurist Alejandro Alvarez and his school of followers argued in the early 20th century—it seems important to acknowledge, and to critically evaluate, not only the region’s historical but also its contemporary role in forging innovative doctrines and practices around international human rights law.[12]

Alexandra Hunees is Associate Professor of Law at the University of Wisconsin Law School.

Cite as: Alexandra Hunees, Introduction to Symposium on the Constitutionalization of International Law in Latin America, 109 AJIL Unbound 89 (2015).

[1] Beginning in 1988, the year of the IACtHR’s first contentious judgment, a new generation of constitutions emerged: Brazil (1988), Colombia (1991), Paraguay (1992), Ecuador (1998 and 2008), Peru (1993), Venezuela (1999), and Bolivia (2009) all introduced new constitutions, and Argentina, Mexico, and Costa Rica undertook important constitutional reforms.[1] While the new constitutions exhibit great variety, they also share important features that were new to the region. They encompassed more rights, including socioeconomic and community rights, and more procedural mechanisms for their protection. They also embraced international human rights treaty law, often explicitly granting it a high rank in domestic law.

[4] The United States is a State Party to the OAS Charter, which commits states to uphold human rights, and creates the Inter-American Human Rights Commission. While the Charter does not set out a bill of rights, many hold the view that the American Declaration of Human Rights articulates the rights alluded to by the Charter. The United States has not ratified the American Convention of Human Rights and has not accepted the jurisdiction of the Inter-American Court of Human Rights. Thus, while it participates in the OAS Human Rights System and is subject to supervision by the Commission, it has not taken on the full set of obligations.

This doctrine creates the international obligation on all state parties to the ACHR to interpret any national legal instruments (the constitution, law, decrees, regulations, jurisprudence etc.) in accordance with the ACHR and with the Inter-American corpus juris more generally (also called the “block of conventionality”).[2] Wherever a domestic instrument is manifestly incompatible with the Inter-American corpus juris, state authorities must refrain from application of this law, in order to avoid any violation of internationally protected rights. State authorities should exercise this conventionality control ex officio, whilst ensuring they always act within the framework of their respective competences and the corresponding procedural rules, as defined internally by states.

This essay will describe the origins and development of this new doctrine, emphasizing its unique aspects and legal foundation. The essay closes by arguing that conventionality control is a practice that is consonant with democratic values, and one that helps make human rights effective.

The expression “conventionality control,” however, was first used by Judge García Ramírez in his separate opinions in cases such as Myrna Mack Chang v. Guatemala (which followed the Barrios Altos precedent). Ramírez stated

“[a]t the international level, it is not possible to divide the State, to bind before the Court only one or some of its organs, to grant them representation of the State in the proceeding—without this representation affecting the whole State—and excluding other organs from this treaty regime of responsibility, leaving their actions outside the ‘conventionality control’ that involves the jurisdiction of the international court.”[9]

The idea was further developed in Tibi v. Ecuador: “if constitutional courts oversee ‘constitutionality’, the international human rights court decides on the ‘conventionality’ of those acts”;[10] and, finally, in Vargas Areco v. Paraguay, which highlighted that the “‘control of compliance’ [is] based on the confrontation of the facts at stake and the provisions of the American Convention.”[11] Later, Judge Cançado Trindade also referred to conventionality control as a mechanism for the application of international human rights law at the national level.[12]

Creation And Development

The doctrine was formally created by the decision in Almonacid Arellano et al v. Chile in 2006.[13] This case focused on the international liability of the Chilean state arising from its adoption and implementation of Decree 2191 in 1978, which granted a general amnesty to all those responsible for crimes committed between 11 September 1973 and 10 March 1978. Judicial implementation of the decree had the immediate effect of terminating all investigations and closing the case file on the extrajudicial execution of Luis Alfredo Almonacid Arellano, who had been executed by police in the context of widespread human rights violations following General Augusto Pinochet’s coup d’etat in 1973. In line with its jurisprudence on transitional justice, the Inter-American Court declared the Chilean amnesty decree null and void ab initio. It determined that, in cases where the legislature fails in its duty to abolish laws which contravene the ACHR, the judiciary remains bound to respect and guarantee the rights protected by the Convention. As such, judges must exercise conventionality control and ensure that provisions of the American Convention are not undermined by the implementation or application of laws which contravene its object and purpose.

Two months later, this precedent was reiterated, albeit with slight variation, in Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru.[14] This ruling effectively cites the Almonacid Arellano criteria for conventionality control, but refines these in two ways: (i) conventionality control arises “ex officio,” without necessarily being requested by any party; and (ii) it must be exercised within the framework of authorities’ respective competences and the corresponding procedural rules.

Since this stage, the Inter-American Court has applied and refined aspects of “conventionality control” in 25 contentious cases, increasing its scope to cover not just judges and judicial entities, but also authorities more generally,[15]including the legislature,[16] and making its exercise relevant to achieving compliance with Inter-American rulings.[17] Reference to conventionality control has now been made in judgments involving the international liability of fourteen different states: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Guatemala, Mexico, Panama, Paraguay, Peru, the Dominican Republic, Uruguay and Venezuela—over half of the states which have recognized the contentious jurisdiction of the Inter-American Court.

The parameters of the conventionality control mechanism have also been set by resolutions other than final judgments in contentious cases. Upon recently adopting advisory opinion No. 21, the Inter-American Court stated

The legal grounding of conventionality control is located principally in articles 1.1, 2, and 29 of the ACHR, and in articles 26 and 27 of the Vienna Convention on the Law of Treaties. Articles 1.1 and 2 of the ACHR outline state duties to develop practices which ensure effective observance of the rights and freedoms enshrined in the pact, thereby requiring that national laws be interpreted in such way as to comply with their obligations to respect and guarantee rights. Article 29 of the ACHR sets out authorities’ duty to enable the enjoyment and exercise of rights established in the ACHR to the fullest extent possible, by effecting the most favorable interpretation of laws for this to occur. Finally, the duty of states to ensure compliance with their obligations under the ACHR are reinforced, in a subordinate manner, by the principles of good faith, effectiveness and pacta sunt servanda, as well as by a judicial ban on drawing on domestic law as a means to justify failure to comply with treaties (in accordance with articles 26 and 27 of the Vienna Convention). Collectively, these aspects provide the legal basis of conventionality control.

In my view, article 25 of the ACHR additionally forms part of the legal basis of judicial conventionality control, in that this provision refers to the right to simple, prompt and effective recourse to a competent court or tribunal for “protection” against acts that violate the fundamental rights recognized by the constitution, the laws of the state concerned or by the convention itself. Accordingly, this provision constitutes an integral element of rights, in that it sets out a right to the guarantee of fundamental rights enshrined in the Convention and in national sources.[21]

Composite Elements

The factors which shape the doctrine of conventionality control can be classified as follows: (i) the authorities to which it applies, (ii) the extent to which authorities should exercise the control, and (iii) the body of laws which trigger the duty to practice conventionality control.

With respect to the first element, it can be argued that the control is far reaching and involves all state authorities (be they executive, legislative or judicial bodies) as the duty to respect and guarantee rights, as detailed in articles 1.1, 2 and 29 of the ACHR, applies to the state as a whole and, as such, cannot be subject to the divisions of power created under domestic law. Nevertheless, responsibility for complying with this obligation falls principally on the judiciary and/or courts, tribunals and constitutional courts because of their central role in the domestic judicial order in protecting fundamental rights (national ones and those from the convention), as set out in articles 25 (judicial protection) and 1.1 of the ACHR (duty to respect and guarantee). As such, national judges, irrespective of their rank, level of authority or area of specialism, must act as the primary and authentic guardians of the rights enshrined in the ACHR. In this way, domestic judges also become a type of Inter-American judge.

The above does not mean that all authorities should exercise conventionality control to the same extent, as the precise way in which this is carried out is determined by national law. This second element was addressed in Dismissed Congressional Employees v. Peru, where the Court determined that authorities (judges, in this case) should exercise conventionality control “ex officio,” but “evidently in the context of their respective spheres of competence and the corresponding procedural regulations.”[22] Accordingly, the practice of conventionality control can be significantly broader in systems of diffuse control, for example, where all judges have the power to refrain from applying laws in a particular case if it is deemed that this would violate the national constitution. By contrast, the level of control will diminish in those systems where powers to interpret constitutionality are more centralized, though the obligation to adopt an interpretation in agreement with the ACHR, in any case, remains. The fact that different levels of control exist does not, of course, impact authorities’ duty to carry out the control ex officio and in accordance with their spheres of competence and the corresponding procedural regulations.

The laws which serve as the basis for conventionality control are those outlined in the Inter-American corpus juris; the real “block of conventionality.” Thisincludes the international human rights treaties created within the OAS, and other relevant soft law instruments which qualify the extent of obligations outlined in international treaties.[23] Accordingly, the body of laws which set the parameters of control are those set out in: the ACHR and its two additional protocols on Economic, Social and Cultural Rights (Protocol of San Salvador) and on the Abolition of the Death Penalty; other treaties, such as the Inter-American Convention to Prevent and Punish Torture; the Inter-American Convention on Forced Disappearance of Persons; the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belem do Pará”); and the Inter-American Convention on the Elimination of All Forms of Discrimination against Person with Disabilities. Of course, the body of laws which give rise to conventionality control will vary in each case, depending on whether a state has signed, ratified or acceded to the instrument and taking into account any reservations which do not contravene the objective and purpose of the treaty. Taken together, these laws can be viewed as constituting an authentic “block of conventionality” (which eventually may also include a “block of conventionality” at the national level).

However, a key part of the doctrine of “conventionality control” (since the leading case of Almonacid Arellano) has been the obligation on states not just to apply the ACHR—and the Inter-American corpus juris more generally—but also to interpret this corpus juris in the same manner as the Inter-American Court. This body’s interpretation of the provisions of the Convention does not merely include sentences passed in contentious cases, but also those contained in other resolutions it has passed. As such, the interpretations also include those relating to the resolution of provisional measures; to monitoring of compliance with judgments; and even those in requests for interpretation of the judgment, as per article 67 of the ACHR. Similarly, interpretations deriving from advisory opinions, highlighted in article 64 of the pact, should also be considered, precisely because the purpose of these is “the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states.”[24]

National authorities must therefore apply the jurisprudence from the Convention (provided that this is more favorable in the terms set out in article 29 of the ACHR), including from cases in which the state in question has not been involved. This is because the jurisprudence of the Inter-American Court is determined by the interpretations that this body makes of the Inter-American corpus juris with the aim of creating regional standards regarding its applicability and effectiveness. This aspect is considered to be of the utmost importance to gaining an accurate understanding of conventionality control. Seeking to reduce the obligatory nature of the Convention’s jurisprudence to just those cases in which the state has been a “direct party” would equate to a negation of the very essence of the ACHR; the obligations of which are accepted by national states when signing, ratifying or acceding to the Convention, and from which international liabilities arise where states fail to comply.

In effect, the “normative power” of the ACHR is that which is defined by the Inter-American Court. The Court’s interpretations regarding the provisions of the Convention acquire the same status as the provisions themselves because, in reality, the “regulations of the convention” are a result of the “interpretation of the convention” that the Inter-American Court delivers as an “autonomous judicial institution whose purpose is the application and interpretation”[25] of the Inter-American corpus juris. In other words, it is the interpretations of the ACHR which ultimately constitute its jurisprudence.

Objectives

In light of the above, it is possible to identify at least three main objectives of the doctrine of conventionality control.

The first is to prevent the implementation of national laws which are manifestly incompatible with the Inter-American Convention and which are null and void ab initio; as is the case with amnesty laws which enable impunity for cases of forced disappearance, extrajudicial executions, crimes against humanity and other serious human rights violations.

The second objective is to serve as a mechanism which allows all state authorities to satisfactorily meet their obligations to respect and guarantee the rights protected under the ACHR and other treaties; and to comply with rulings against the state to which these authorities belong. In this manner, the doctrine seeks to bolster the complementarity (subsidiarity) of national and Inter-American systems and to create a genuinely “integrated system” of human rights protection.

The third and final objective is to serve as a bridge or medium through which to facilitate and increase dialogue, especially judicial dialogue, between national courts and the Inter-American Court on the subject of human rights, and for this to enable the effective realization of these rights. It accordingly represents a key component in the creation and unification of a ius constitutionale commune which protects the dignity of all individuals and strengthens constitutional democracy in the region.

Eduardo Ferrer Mac-Gregor is Judge at the Inter-American Court of Human Rights and Professor and Senior Researcher at the National Autonomous University of Mexico (UNAM). Some of the ideas presented here are based on previous academic work and especially on our individual opinions in the cases Cabrera García and Montiel Flores v. Mexico; Gelman v. Uruguay, monitoring compliance, and Liakat Ali Alibux v. Suriname. This article was translated from Spanish by Peter Low.

[19] The expression “interpretation given to a provision of the Convention” is used for the first time in the Monitoring Compliance with Judgment in the case Gelman v. Uruguay, Monitoring Compliance with Judgment, Order of the Court, from para. 67 (Inter-Am. Ct. H.R. Mar. 20, 2013); see also my separate opinion in this same case regarding the distinction between direct effects for the parties (res judicata) and indirect effects for ACHR signatory states (res interpretata) of the Inter-American judgment, and its relation to conventionality control, Gelman v. Uruguay, Monitoring Compliance with Judgment, Separate Opinion of Judge Eduardo Ferrer Mac-Gregor, in particular, from para. 22 (Inter-Am. Ct. H.R. Mar. 20, 2013).

[23]See American Convention on Human Rights, Nov. 21, 1969, 1144 UNTS 143, art. 29 b) and d); see also Familia Pacheco Tineo v. Bolivia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 272, para. 143 (Nov. 25, 2013) (The Court ruled that article 29 d) enables the Court to interpret the ACHR in light of other sources of international law relevant to the subject in question (in this particular case, international refugee law). This criteria could also be applied to the interpretation of other articles of the convention, such as art. 26.)

Judge Eduardo Ferrer Mac-Gregor presents a very clear and concise description of the main contours of the conventionality control theory articulated by the Inter-American Court of Human Rights (“Court,” “Tribunal,” or “Inter-American Court”).[1] So, I will not repeat his masterful explanation, which states, in brief, that the conventionality control requires all State authorities, particularly judges, to apply the American Convention on Human Rights (“the Convention”) as interpreted by the Court.

While there are a variety of ways that the conventionality control can be interpreted in good faith, an absolutist interpretation may lead to unintended, and undesirable, consequences. In this absolutist interpretation, the Convention becomes an integral component of the domestic legal system and is transformed from a complementary or subsidiary international treaty creating international obligations into a domestic norm hierarchically superior to all laws, including the national constitution. And in this transformation the Court is the final and sole proper interpreter of the Convention. The expansive language in its latest decisions suggest that the Court has adopted the absolutist view of the conventionality control. This article focuses on the problems with this absolutist interpretation, and suggests an alternative approach.

The inter-American system was conceived as subsidiary to the national rights protection system.[2] The subsidiarity principle stems from the idea that States have the primary responsibility to protect the rights of individuals; if they fail to do so, the American Convention (through the Court and the Inter-American Commission on Human Rights) act as a complement to domestic laws and practices in redressing victims. Subsidiarity is also premised on the understanding that local actors, including judges, are better suited to understand what measures may be most effective for internalizing human rights norms in distinct national contexts.

In this traditional understanding, the Convention was not required to be part of the hierarchical order of domestic legal systems. States were only required to effectively guarantee the conventional rights. In the past, the Court always insisted that domestic norms, including the constitution, need to conform to the Convention.[3] But until Almonacid v. Chile, the Tribunal never required judges to directly apply the Convention. It always left the question of how to secure such compatibility to the judicial authorities’ discretion.

The doctrine of conventionality control, by contrast, requires, as a matter of international obligation, that the Convention be incorporated as domestic law. At least that is how the doctrine appears to be understood by the Court, and how it is explained by Judge Ferrer Mac-Gregor. The Court also requires States to grant the Convention a higher status than any other domestic norm: in Almonacid v. Chile, it announced that domestic judges must check the compatibility of all State action, whether constitutional or legislative, with the American Convention as a matter of international and domestic law.[4] But neither the text of the Convention nor the general principles of international law specify how, exactly, the Convention should be domestically incorporated, or if it should rank at any particular level in the domestic system.

In addition, the conventionality control challenges the traditional concept that a State may commit itself to protect human rights by ratifying a human rights treaty, but those rights may not be self-executing on the domestic plane. By instructing domestic courts not to enforce national laws that violate the Convention, the treaty becomes self-executing regardless of what the domestic legal system establishes. As such, the conventionality control makes the Inter-American Court, rather than the State, the final interpreter on how the American Convention should be translated into domestic law.

This understanding resembles the European Union (EU) model more than it does the European human rights system model. Community law dominates domestic law in the EU. European lawcould not be overridden by domestic law.[5] This is exactly the same position that the Inter-American Court takes with regard to the American Convention. But the Convention is a human rights treaty that neither creates nor intends to create an inter-American legal system. Indeed, the Inter-American Court’s position is even more extreme than the requirements and practices of a fully developed integration system such as the EU. European national courts have accepted the supremacy and direct effect of community law and routinely set aside national legislation when it conflicts with EU laws.[6] Yet European domestic courts have not accepted the idea that European law prevails over domestic constitutions as is required by the Inter-American Court.

By placing the Convention above national legal orders, including national constitutions, it appears that the Court conceives of the Convention as a federal constitution, transforming the Court into a federal supreme court. Forinstance, the Supremacy Clause of the U.S. Constitution not only stipulates that the Constitution, the laws of the United States, and international treaties “shall be the supreme Law of the Land” but also commands local and state judges to disregard any other conflicting rule in the laws or constitution of their state.[7] This is exactly what the Court requires from Latin American judges. But, again, the Convention is not a federal constitution. The Organization of American States is not a federal State. And the Inter-American Court is not a federal supreme court.

No conventionality control or similar theory has been adopted by the European Court of Human Rights (European Court). The strong debate on whether the European Court should provide “individual” or “constitutional” justice is well known.[8] Those who see the European Convention as a constitution and the European Court as a constitutional court argue that the European system has many constitutional characteristics and is increasingly acquiring constitutional status; the European Convention is “a constitutional instrument of European public order.”[9] Similarly, Judge Ferrer Mac-Gregor explains that conventionality control contributes to the construction of an intra-regional legal order, or the formation of a ius commune.

But no one in Europe argues in favor of granting the European Court the power to nullify domestic legislation, or that domestic courts must exercise conventionality control of domestic legislation, including the constitution, as the Inter-American Court does. As Judge Ferrer Mac-Gregor says, some compare the Inter-American Court to a “kind of constitutional tribunal for the region.” The clearest expression of the Court’s role as an inter-American constitutional court is when the Inter-American Court both asserts the incompatibility of a domestic norm with the Convention and also assumes the power to invalidate those domestic norms as it did in the famous Barrios Altos v. Peru case. The Court decided that Peru’s amnesty law was incompatible with the American Convention, and ruled that “consequently, [the law] lack[s] legal effect,”[10] and even that the lack of legal effect “has generic effects” beyond the Barrios Altos case itself.[11]

Barrios Altos and Almonacid, read together, show that the constitutionalization process is a project that the Court initiated a decade and a half ago. It is ambitious, but surprisingly has not generated the strong debate that is taking place in Europe.

In this absolutist approach, the Court asks local tribunals to exercise both judicial review and conventionality control, even if those tribunals have no such constitutional authority. The Court ignores that Article 2 of the Convention requires that the rights be guaranteed in accordance with “constitutional processes.” As Judge Ferrer Mac-Gregor explains, the Court tries to overcome this by stating that judges should exercise conventionality control within their powers, despite the fact that judges, in most countries, must apply their constitution. How can judges exercise conventionality control in a country where judicial review is concentrated in a constitutional or supreme court?[12] Additionally, severalLatinAmericanconstitutions explicitly require the compatibility of international treaties with the constitution and allow constitutional courts to declare the unconstitutionality of treaties, even where human rights treaties are granted a special status.[13] Moreover, the Court has required that judges perform this conventionality control ex officio or sua sponte, when in many countries judges are forbidden to do so.

The conventionality control theory is also used by the Court to impose its authority as final interpreter of the Convention. The Court argues that the parameter of conventionality control is not only the Convention, but also its own case law. The Court is betting that Latin American tribunals, despite coming from the civil law traditions, with a lesser emphasis on case law and precedents, will follow the Court’s jurisprudence. If the conventionality control theory is successful, then there could be thousands of judges interpreting the Convention through the Inter-American Court’s jurisprudence. Domestic judges will become inter-American judges at the national level.

There is some logic to the proposition that domestic tribunals should follow inter-American precedents. The opinions of the Court have highly persuasive force, as they come from the judicial body created to interpret the Convention. Consistency and procedural-economy reasons also call for courts to follow those precedents. In fact, many Latin American judges in many countries follow the Court’s jurisprudence. If states do not follow the Court’s interpretation it is possible that eventually the Court may rule on the case according to its own precedent.

However, the Court’s insistence that judges view its case law as binding precedent may be problematic in two ways. First, although policy and judicial economy reasons may justify adhering to the Court’s decisions, such reasons do not create a legal obligation. The treaty does not establish that the Court’s decisions are binding on States not parties to a particular case, or that national courts must respect the Court’s jurisprudence. Article 68.1 requires states to “undertake to comply with the judgment of the Court in any case to which they are parties,” but is otherwise silent.

Second, the Court’s approach fails to acknowledge and give due weight to the jurisgenerative role of its fellow courts in the region. In fact, Latin American judges had been using the Convention to interpret constitutional rights for decades prior to Almonacid, and have often had the opportunity to interpret how a provision of the Convention applies in a particular matter before the Inter-American Court does.[14] Recently the Court has been citing, on a regular basis, domestic decisions that are consistent with its own interpretation of the Convention.[15] The weakness of the Court’s approach, however, is that its citation of domestic cases is very unprincipled. The Court has no proper theory on the value of those Latin American precedents in interpreting the Convention.

According to the conventionality control, as Judge Ferrer Mac-Gregor describes, national judges are proper interpreters, guardians, and enforcers of the Convention, just as the Court is. Thus, the Court should analyze this national jurisprudence and respect its authority. The Court should also be more serious about the often-mentioned jurisprudential dialogue, meaning the reciprocal influence between national courts and the Inter-American Court. In a true dialogue the Court would discuss national courts’ jurisprudence in an open-minded yet critical fashion.[16] Judicial dialogue implies “reciprocal intellectual give and take,”[17] rather than the Court’s recitation of national precedents. As Judge Ferrer Mac-Gregor explains, the conventionality control could serve as a bridge to increase judicial dialogue, but so far the Court had failed to use that bridge.

On the other side of the coin, conventionality control requires national courts to apply the Convention as interpreted by the Court. Thus, in cases where jurisprudence from the Inter-American Court exists, as Judge Ferrer Mac-Gregor explains, the degree of freedom for national courts is limited. However, there are several legitimate reasons why a national court might depart from the inter-American precedents. A mechanical application of the Court’s decisions undermines the dynamic nature of the Convention.[18] Conditions may have changed since the Court’s precedent, requiring a new inter-American interpretation. A mechanical application of the Court’s case law could even affect the very judicial independence of Latin American judges.[19] And, unlike the Court, domestic judges see the Convention as only one more legal norm to apply. Of course, clear guidelines should be developed to allow the possibility of rejecting the jurisprudence of the Court when compelling reasons require it.

An Alternative Approach To The Conventionality Control

The doctrine of conventionality control seeks to embed the American Convention in national legal systems in order to provide solutions where subsidiarity fails.[20] To be effective, the principle of subsidiarity generally relies on functioning democracies, particularly those with an independent and effective judiciary. For decades, the Court did not have this privilege, as most of its cases involved issues where grave and massive human rights violations took place, or where the national courts were either powerless or unwilling to intervene. So, perhaps it is not surprising that the Court sought new tools and theories to deal with these structural issues and problems. Rather than giving leeway to Latin American states on how to incorporate and use the Convention, the Court took a more forceful position, requiring that the Convention be fully integrated into the domestic legal system.

Today, however, after almost thirty years of a sustained move to more stable democratic governance in Latin America, the Court should have more confidence in the judiciaries of the region. Indeed, as noted above, the Court was following a trend initiated by Latin American constitutions when it insisted that courts grant constitutional status to human rights treaties.[21] In many states, the Convention is already incorporated into the “constitutional bloc,” which refers to a cluster of laws and norms, including the constitutional text as well as certain treaties with constitutional status, against which judges must review legislation. In these countries, however, the conventionality control became part of the judicial review due to the decisions of the constitutional framers; it was not imposed as a legal obligation coming from the Inter-American Court.

If the Court were to reconceive the conventionality control as a partnership with national courts, it could again embrace the foundations of the subsidiarity principle: domestic actors are better suited to understand the most effective way to internalize human rights norms in their local context. This alternative approach understands that the conventionality control facilitates and promotes socialization[22] and transnational processes[23] and acknowledges the role that domestic courts play in promoting (or hampering) social change[24] and domestic implementation of international human rights law.[25] Domestic courts operating within this newly expanded inter-American system, and having to justify or criticize the State’s official policies in terms of the inter-American human rights discourse, become essential actors in this socialization process.[26] This inter-American discourse influences and could strengthen domestic courts.

At the same time, domestic courts become a source of legitimacy and authority for the decisions of the Court. If national courts use the inter-American precedents, they provide the Court with social legitimacy. The Court needs to be aware that its authority and legitimacy depend, in large part, on the existence of a community of Latin American judges who are engaged with its precedents and interact with it, but who also monitor the Court’s decisions and standards by applying (or rejecting) them.

In other words, the Court should see Latin American judges as active participants in the creation of inter-American law. In fact, since the Court decides only about a dozen cases per year, national judges will often act with no specific interpretive guidance. The only precedents on the content of the Convention will come from those domestic judges.[27] This decentralized system of conventionality control is already creating a strongLatin Americanjurisprudence on the Convention.[28]

This alternative approach also calls for the Court to recognize that while many Latin American tribunals had been applying the Convention before the explicit requirement made by the Court, many other Latin American courts did not. Similarly, after Almonacidsometribunalsembracedthe conventionalitycontroldoctrine.[29] But it is also the case that somehighcourtssquarely reject the decisions of the Inter-American Court either in concrete cases involving their own countries or by refusing to apply inter-American precedents.[30] Thus the Court should understand its relationship with local tribunals as a strategic and somehow contested partnership.

Further, domestic judges, unlike the Court, apply both domestic law and international human rights law. Thus the Court should reject the idea that national courts are “a simple compliance mechanism for international law; in effect, not judges, but police.”[31] In this new approach the Court needs to understand that for national judges, the Convention is only one element in the mosaic of different constitutional and legal provisions. Thus, national interpretation may differ considerably from an interpretation based on the Convention alone, as the Court does.[32] Additionally, national judges should have flexibility to decide cases, taking into consideration not only the case law of the Court but also their evolving socio-political, economic, cultural, and historic context. For these reasons, the Court must accept that national courts should have at least a “modicum of independent interpretative authority.”[33]

In the following paragraphs I provide examples of the new model and partnership that I am proposing. In Bulacio v. Argentina, the Court established that it was a violation of the American Convention for states to apply the statute of limitations in a criminal case investigating the excessive use of force by police which resulted in a youth’s death. The Court ordered the reopening of the criminal case.[34] When reviewing the resulting petition to reopen the case, the Argentine Supreme Court was very critical of the decision of the Inter-American Court because it restricted the rights of the police officer who was being accused of the death of Mr. Bulacio. But the national court, despite these reservations, said that Argentina was under a constitutional and international obligation to comply with the inter-American decision.[35] In other words, despite disagreeing with the Inter-American Court’s decision on constitutional grounds, the Argentine court accepted the ruling and enforced it. In its decision on supervising compliance with its judgments, the Court referred to the decision of the Argentine court, but without mention of the Supreme Court’s critique. Further, it failed to acknowledge the importance of a high tribunal ordering compliance with an inter-American judgment as a matter of obligation, and despite its own disagreement with it.[36] A true partnership would have required engaging in a conversation where the Court could have expanded its reasoning justifying the decision, and acknowledging the importance of the national court’s approach. Not only did the Court fail to do so, but it said that the obligation to investigate the case was still pending. It spoke not a single word supporting the local judges’ courageous decision.

Even with this clear message, Judge Garcia Ramirez made no explicit reference to the decision of the Argentine Supreme Court. Nor did he acknowledge that the Inter-American Court was changing its case law. Significantly, Judge Garcia Ramirez insisted that the Court “has not changed its view. It has more specifically or better formulated it, acting on the concerns raised by the domestic courts.”[40] In order to meet my criteria for what constitutes a genuine dialogue, the Court should go further than Judge Garcia Ramirez’s statements. In a revised conventionality control model, the Court would engage with the Argentine Supreme Court’s reasoning. It would recognize the appropriateness of the domestic decision; and it would explicitly acknowledge the change in its own previous decision based on the critique of a domestic tribunal. In this way, the local courts would know that the Court (and not only a single member of it) is willing to engage and recognize the contributions of local judges in the creation of inter-American law.

Another example on how to make a true partnership refers to some of the promotional activities of the Court. The Tribunal has the practice of organizing sessions in different countries. During those special sessions, in addition to its hearings on specific cases, the Court organizes seminars or workshops. For instance, during its 51st Special Session in Paraguay, the Court organized a seminar on “Inter-American Justice and Judicial Dialogue.”[41] The panelists were judges and clerks from the Inter-American Court. For the panel on “Conventionality Control and the Impact of the Inter-American Court’s decision: A Comparative View,” the panelists were the President and Secretary of the Court. Similarly, during its 53rd Special Session in Honduras, the Court organized another seminar with the same name. The keynote speaker in this seminar was the President of the Inter-American Court, Judge Sierra Porto and the four panelists were the Secretary of the Court and three law clerks from the Court.[42]

Not a single domestic judge was invited to either of these seminars to make a presentation about conventionality control or judicial dialogue from a national perspective. No national judge was asked to present on how they apply the Convention, what challenges they face in using the case law of the Inter-American Court, how the inter-American case law is translated domestically or their views on how to improve the Court’s engagement with the local judiciary. Inclusion of domestic judges would have been an example of what a genuine partnership in the construction of conventionality control requires.

Conclusion

Despite the shortcomings of the Inter-American Court’s analysis and use of the conventionality control, I firmly believe in the need for an integrated inter-American model that merges Latin American constitutional law and inter-American law. The Court should develop this integrated model in a serious, consistent, coherent, and systematic way. My basic proposition is that the Court must assume that Latin American judges are essential and central actors in this new framework. Domestic judges are at the forefront of developing the scope and content of the Convention. In most areas and in most situations, national judges will be the first to interpret the Convention. In many instances, in fact, there will be strong and firmly developed case law prior to the Court’s intervention.

In order to succeed in the Convention’s domestication process, the Court must recognize the important political role that judges play. As judges are the ones deciding the content of constitutional and conventional rights, the prospect of success for the Court relies heavily on how those judicial authorities follow its determination. As such, the Court needs to become an ally of judicial authorities at the national level and also transform them into its own allies. The first step in this direction will be to take seriously what judges are saying and deciding in similar situations. It requires the Court to engage in a substantive bidirectional dialogue with national judges.

Ariel E. Dulitzky is Clinical Professor of Law and Director of the Human Rights Clinic, and Director of the Latin American Initiative at the University of Texas at Austin.

[19] As the Inter-American Court has said, independence of judges means that “they should not feel compelled to avoid dissenting with the reviewing body which, basically, only plays a distinct judicial role that is limited to dealing with the issues raised on appeal by a party who is dissatisfied with the original decision.” Apitz Barbera v. Venezuela, Preliminary Objection, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 182, para. 84 (Aug. 5, 2008).

[27] For instance, there are no cases on the nonimposition of the death penalty on pregnant women, American Convention, art. 4.5; the right to compensation, art. 10; the right to assembly, art. 15; or most aspects of freedom of religion, art. 12.

Ius Constitutionale Commune en América Latina (ICCAL) constitutes a new approach to constitutionalism in the region. It has transformative aims and draws its energy from the perception of unacceptable conditions of a systematic nature. Like many legal concepts it refers both to positive law as a well as to the legal discourse connected to it. In terms of positive law, it is above all based upon the American Convention on Human Rights and other inter-American legal instruments, the concordant guarantees of national constitutions, the constitutional clauses opening up the domestic legal order to international law as well as pertinent national and international case law. In terms of legal discourse it is characterized by a disciplinary combination of national and international legal scholarship, a comparative mindset, and a methodological orientation towards principles.

The proponents of this approach set a stark accent on rights and the transformation of political and social realities but reject plebiscitary presidentialism and the centralization of power as a transformative strategy. Accordingly, the separation of powers and independent institutions are accorded great weight. ICCAL supports the regionally secured realization of the central promises of national constitutions, the embedding of the national legal orders in a larger context, and the transformation of society through law.

The existence of a Ius Constitutionale Commune becomes most palpable in the interaction of domestic authorities with the Inter-American Court. Most states in the region have recognized the supremacy of international human rights law in their domestic legal orders—either through express constitutional provisions or by constitutional adjudication. Moreover, the Inter-American Court has developed the legal doctrine of conventionality control according to which all domestic authorities are under the obligation to determine whether their acts are in conformity with the American Convention and the Court’s interpretation of it. As a result of inter-American jurisprudence states have repealed and amended laws, including the Constitution; national Courts, especially constitutional courts, have relied on inter-American case law in salientcases;[1] and administrative agencies have crafted countless policies to comply with far-reaching reparations. There is little doubt that this system constitutes the normative core of the Ius Commune.

By addressing the enormous social challenges faced by the region through a common discourse on human rights, democracy and the rule of law, ICCAL has significant potential to guide legal scholarship and practice. This essay is an attempt to describe this novel approach and to highlight the opportunities it presents.

Core Concerns

ICCAL shares main features of transformative constitutionalism as it is known in other parts of the world.[2] Thus, it highlights the capacity of law to transform societies and emphasizes law’s response to problems such as widespread poverty, violence and social exclusion.[3]ICCALaims at changing political and social realities in the region in order to create the general framework for the full realization of democracy, the rule of law, and human rights.[4] As vague as this appears at first, the concern is in fact quite concrete. It arises out of the deeply troubling experience of unacceptable living conditions for broad parts of the population.

Indeed, the question of inequality is at the very center.[5] Inequality is particularly deep, stubborn, and even explosive when entire groups of the population are not able to participate in the achievements of the welfare state, including healthcare, education, the economy, politics, and even the law. The concept of exclusion describes this challenge. It summarizes the problems of a society whose capacities for social integration falter because many people are not given due consideration within its institutions. A society will never minimize structural inequality if it cannot overcome such exclusion. ICCAL strives towards this goal. Overcoming exclusion serves as the conceptual focus. This does not mean; however, that ICCAL subscribes to any particular political ideology. The project encompasses different, even conflicting approaches to social integration, including questions of the desirable economic order, just redistribution, free trade or investment protection.

To advance with this agenda, ICCAL chooses human rights as its linchpin: the Ius Constitutionale Commune en Derechos Humanos. There are three essential reasons for this. First, the transformative element of constitutions is above all contained in their fundamental or human rights guarantees. Second, these rights enable the mobilization of civil society through strategic litigation. Third, judicial decisions oriented towards fundamental and human rights, which are often sought by excluded groups, provide legal support to the projects of such groups. These rights have had a deep and transformative impact in Latin America, regardless of the fact that they are often not effectively guaranteed. Human rights have developed into a common language, legal—but also political and social—that did not exist 20 years ago, to discuss challenges of exclusion and available remedies not only amongst legal professionals but also in broader public discourse.

The focus on exclusion is a core feature of Latin American human rights discourse. The indivisibility and interdependence of human rights, in particular of civil and social rights, has been emphatically highlighted.[6] Thus, the equality principle is not understood as a mere ban on discrimination. Rather, it demands recognition for, as well as the overcoming of, at least the most massive forms of social inequality. In this regard, transformative constitutionalism as we find it in Latin America is not readily discernible from that of India or South Africa.[7] The Colombian Constitutional Court is exemplary in this regard: it has attempted to realize social rights despite the absence, by-and-large, of welfare entitlements and a functioning welfare state administration.[8]

Latin American human rights discourse targets another form of exclusion, that of being subject to extreme violence. This explains the origin of specific Latin American innovations in human rights law, such as the prohibition of amnesties for grave human rights violations, femicide, or enforced disappearance of persons. This is perhaps the best known contribution of Latin American case law to the global discourse dealing with the worst forms of human aberration.

ICCAL’s Idea of Commonality

Two components justify the claim of commonality implicit in ICCAL. The first is a new openness of the national legal orders to a common substrate of international law, in particular the American Convention on Human Rights. ICCAL captures the idea that national constitutional law and the relevant international law should jointly realize common guarantees and promises in a mutually reinforcing “constitutional bloc” (bloque de constitutionalidad). The openness of national legal orders is thus not only the expression of a common development but also lends the national legal orders a common orientation. It thus seems quite logical for the Inter-American Court to describe human rights treaties as a body of law or corpus iuris.[9] The fact that new interpretations, doctrines and practices of modern constitutionalism are regionally entrenched sets ICCAL apart from other stripes of transformative constitutionalism.

Secondly, the concept stands for a common legal discourse. Its characteristics are a disciplinary combination of national and international legal scholarship, a comparative mindset, a methodological orientation towards principles, and a focus on rights. The combination of international and national legal scholarship is a breakthrough, as the two sub-disciplines have traditionally been separate academic fields. An important forum for common legal discourse is the Instituto Iberoamericano de Derecho Constitucional. Since its foundation in 1974 it has put comparative constitutional discourse at the service of democratic aims. This orientation can also be observed in various journals that strive to develop a Latin American legal-scholarly discourse: the Revista Latinoamericana de Derechos Humanos, the journal Derecho de la Integracion: Revista Juridica Latinoamericana, the Anuario de Derecho Constitucional Latinoamericano, the Revista Latinoamericana de Derecho, the Revista Latinoamericana de Derecho Social, and most recently the Revista Derecho y Crítica Social.

The term Latin America is to be taken carefully. Identifying the land mass between the Rio Grande and Tierra del Fuego as one region should not be taken to presume significant political, social, economic or legal homogeneity, let alone unity. The differences between Chile and Honduras are not lesser, and perhaps greater, than those between Sweden and Romania. Furthermore, the existing regimes of economic integration among Latin American countries are much weaker than in Europe. Moreover, they do not work towards an overarching Latin American “community” comparable to the European Union.

In recognition of this fact, the idea of commonality underlying ICCAL does not strive towards the economic, social, or political integration of Latin America according to the European model, nor the formation of a regional bloc. The ICCAL project is rather a regionally embedded realization of the central promises of the involved national constitutions. The concept of Ius Constitutionale Commune gives it a name, provides orientation, and aims at generating and structuring academic, political, and judicial communication.

Institutionalidad and the New Role of Courts

As a concept for understanding Latin American constitutionalism, Institutionalidad is as idiosyncratic as it is helpful. In Latin America, constitutional text and constitutional reality frequently diverge. Certainly, some Latin American states, in particular Chile, Costa Rica, and Uruguay, have a rule of lawperformance record which exceeds that of, for example, Bulgaria, Greece, Italy, or Romania.[10] But on the whole, structural deficits in the rule of law have been a frequent and continuous concern in Latin America. The lack of Institutionalidad means the lack of a clear separation between the public interest to be pursued by public institutions and the private or corporatist interests of office-holders, resulting in widespread corruption.

The promotion of Institutionalidad is a central concern for ICCAL. In contrast to hyper-presidentialism, it accords great weight to the separation of powers and independent institutions. Highly significant for the realization of democracy are, for example, independent institutions which carry out and supervise political elections. The contribution of these institutions to the fairness of elections in many countries has resulted in the increased responsiveness of the political system which in turn is crucial for inclusion as advocated by ICCAL.

Of course, the protection of rights calls for courts. While the trust placed on the judicial branch is generally quite low,[11] courts appear to be the key actors. The jurisprudence of the Colombian Constitutional Court and the Inter-American Court demonstrate that this aspiration is no rose-tinted utopia. It is nonetheless clear to all that courts cannot and will not automatically support a transformational project. The persistent question is this: what can be done so that the Latin American courts, which traditionally have not challenged the executive power or practices of exclusion, will take up these difficult tasks with some prospect of success?

In order to succeed, ICCAL requires many elements: judicial training, procedural and institutional reform, an interested public, a reform of legal education as well as a constructive but critical legal scholarship. There is a consensus that the increase in judicial power must be closely accompanied by executive and legislative policies. The legal system can make an important and specific contribution to the transformational process, but it clearly cannot replace politics in the broad sense.

The Role of Regional Institutions

Another feature of ICCAL that distinguishes it from older transformative conceptions is that it transcends the national horizon: it weaves together constitutional law and international law and ascribes significant autonomy to international institutions. Of course, compared to Europe, one finds in Latin America a much more profound skepticism towards international economic and financial institutions, such as the World Bank, the International Monetary Fund, international investment arbitration, as well as the recent free trade agreements. These institutions are often associated with the neo-liberal “Washington Consensus,” which left behind deep but not always welcome traces, since it often sharpened social exclusion. The representatives of ICCAL are not interested in a blanket opening-up of state sovereignty, but rather more narrowly in securing human rights, democracy, and the rule of law. Sovereignty therefore remains a relevant principle. However, the character of sovereignty has changed from final and conclusive to functional: it now stands in the service of fundamental principles.[12]International institutions, which strengthen constitutional principles, are thus understood as constitutional achievements.

The internationalization of constitutional law and the constitutionalization of international law are phenomena well-known in the global North. However, the developmental dynamic in Latin America is noteworthy for its originality. The new openness of domestic legal orders operates legally through an institution which has been borrowed from Europe, but which has been ingeniously reengineered in Latin America: the bloque de constitucionalidad.[13] Whereas in France and Spain the idea of the constitutional bloc broadened the standards for constitutional jurisdiction, in Latin America, by contrast, the bloque de constitucionalidad integrates international norms into the domestic legal order, and thus strengthens those national courts which are pushing the constitutional agenda.

The international law component of Latin American constitutionalism arises from many sources. However, there is a common core: the inter-American system for the protection of human rights. The significance of this system is great enough to merit the description of the whole process as one of Inter-Americanization.[14] Of course, the Inter-American Court can do little by itself, and indeed mainly operates by strengthening likeminded domestic actors.[15] The essential function of the international level is to shift the balance within domestic conflicts so that the constitutional project can advance.

The Court, with a total of 173 cases to date (its corpus iuris), has generated a remarkable case law tailored to Latin American problems. The pivotal point of this discussion is the doctrine of convention control (control de convencionalidad), introduced in the case of Almonacid Arellano v. Chile.[16] The doctrine requires that domestic courts apply the Inter-American Convention and do so according to the standards laid down by the Court in its case law. In accordance with this doctrine, which is still being developed, all state acts must be reviewed for their conformity with the convention; if there is a conflict, the measure cannot be carried out. This encroaches deeply upon the domestic order of competence, calling into question the relationship of the judiciary to the other institutions of the state as well as the hierarchy within the judiciary.

Since the Inter-American Court ascribes to its decisions direct effect and priority in the domestic legal order, it impedes state actions, requires domestic legislation, and orders state institutions to implement a plethora of measures. The constitutional implications of this development are obvious, especially because it often relates to highly political matters in deeply divided societies. Thus, it is no surprise that a rich debate has unfolded concerning the conventionality control. The powerful effects of this body of law has raised democratic legitimacy concerns. Criticism emanates not only from institutions that themselves do not wish to be criticized, but also from authors who fundamentally agree with the creativity and thrust of the court’s jurisprudence.[17]

Prospects

Ius Constitutionale Commune en América Latina provides a dynamic approach to law, which takes up the enormous social challenges of the region through a common discourse on human rights, democracy, and the rule of law. It can rely on the great legal-historical and cultural affinities in Latin America, which are based on the Iberian colonization, the influence of the Corpus Iuris Civilis and the Corpus Iuris Canonici, the U.S. Constitution, the Constitution of Cadiz as well as French constitutional and administrative law, but also the idea of Latin American unity and the failure of its realization. It struggles, along and in cooperation with other social actors, with common problems, in particular inequality and the exclusion of large segments of the population, the legacy of authoritarian regimes, the shadow cast by U.S. interests, as well as hyperpresidencialismo and the weakness of many public institutions. It formulates a broad consensus on the way forward: a rights-based, supranationally embedded and regionally rooted constitutionalism.

What are the chances for this transformative constitutionalism? Whoever looks for reasons to cast doubts will quickly find them in historical trajectories, cultural characteristics, economic structures, geopolitical givens, political power relationships, and social conflicts. However, on the whole and despite the obstacles it faces, Latin American transformative constitutionalism has become part of a broader social and political development. Even self-styled realists must recognize the novel opportunities and possibilities it presents.

Armin von Bogdandy is Professor of Public Law and International Law at the law faculty of Goethe University Frankfurt and Director of the Heidelberg Max Planck Institute for Comparative Public Law and International Law.

On 24 February 2011, the Inter-American Court of Human Rights (IACtHR) issued its decision in Gelman v. Uruguay, condemning Uruguay for the forced disappearance of María Claudia García Iruretagoyena de Gelman and the kidnapping of her daughter Macarena Gelman during the military dictatorship.[1] In the decision, the Court ordered Uruguay to remove all obstacles that enabled those responsible for the crimes to go unpunished. Accordingly, it declared that Law 15848 on the Expiry of Punitive Claims of the State (“Expiry Law”), a 1986 amnesty law that prevented the prosecution of people who had committed serious human rights violations during the military dictatorship, was incompatible with the American Convention on Human Rights and the Inter-American Convention on Forced Disappearance of Persons, and therefore lacked legal effect. That the law had been passed democratically and subsequently reaffirmed two times by popular referendums did not change the Court’s evaluation or impede the Court from annulling it.

The political and legal implications of this decision are enormous, touching on fundamental issues in contemporary constitutional and criminal law theory. My analysis of the IACtHR is not motivated by any intention to defend or criticize the decision but rather by the importance of the theoretical questions that it forces us to explore. I will focus on a series of basic questions that the decision takes up: How should the relationship between democracy and rights be conceived? More specifically, how should this relationship be conceived when it imbricates, as this case does, fundamental human rights and free, open plebiscites? How can the potential tension between the decisions of a democratic community and those adopted by international bodies be resolved? When the most serious violations of human rights are involved, to what extent should the state be allowed to determine the level or terms of its reproach, and what should be the limits on its discretionary power?

Democracy And The Problem Of Democratic Pedigree

One of the first questions that the Court’s decision raises refers to the locus of the tension between democratic decision-making and international human rights law: which aspect of international human rights law was being violated by the democratic decisions taken in Uruguay? The Court addresses this question in the section of its decision labeled “Amnesty Laws and the Jurisprudence of this Court.” Here the Court insists that “amnesty laws are, in cases of serious violations of human rights, expressly incompatible with the letter and spirit” of the American Convention. This idea had already been expressed by the Court, albeit slightly differently, in cases such as Barrios Altos v. Peru, La Cantuta v. Peru, Almonacid Arellano v. Chile, and Gomes Lund v. Brazil.[2] The Court adds that amnesty laws:

The position of the Court on this matter is ultimately difficult to accept because it misunderstands the proper attitude of judicial review toward democratic decision-making. Latin America has a long history of amnesty and pardon laws.[4] The amnesty laws that began to appear in the region starting in the 1960s, during the authoritarian era, were driven by different motives and acquired forms and substance that varied by context. This is why the decision of the Court to consider all amnesty laws involving serious human rights violations equally lacking in legal effect, despite the obvious and relevant differences among them, can seem, on the surface, to lack nuance, and upon reflection, to create injustice.

The potential injustice of the approach becomes apparent when we take into account an important element that varies among amnesty laws: their democratic legitimacy. I will call this the problem of democratic pedigree. To illustrate the problem, I would like to differentiate between four amnesty laws that were passed over the last 30 years in the region: (i) the self-amnesty proclaimed by the National Reorganization Process in Argentina before surrendering power; (ii) the self-amnesty proclaimed by the regime of Alberto Fujimori in Peru following the massacre at Barrios Altos; (iii) the pardon laws passed by the democratic government under President Raúl Alfonsín in Argentina putting an end to the trials of persons responsible for the serious human rights violations that took place in Argentina starting in 1976; and (iv) the Expiry Law passed in Uruguay and reaffirmed in two instances by popular vote.

These four laws carry varying degrees of democratic legitimacy.[5] We can qualify the first amnesty—which was imposed by a blood-soaked military regime in its own favor when it was at the ebb of its popularity—as entirely lacking legitimacy. The second amnesty was advanced by the Peruvian President Fujimori after he dissolved the Congress in a self-coup d’etat, and was approved by its replacement, the (so-called) new Democratic Constituent Congress. The law was imposed against a backdrop of severe restrictions on civil and political rights. The Peruvian amnesty thus warrants a very low presumption of democratic legitimacy.

The third involves the pardon laws proposed by the democratic government of Raúl Alfonsín, approved by the national Congress, and supported by the Supreme Court. While it is always difficult to measure the legitimacy of a norm, Alfonsín’s pardon laws were produced in a context of broad civil and political liberties with a mobilized citizenry marching freely in the streets. At the same time, these norms were proposed in response to unjustifiable pressure from military groups, and in particular the intimidating Easter rebellion, during which a military unit declared mutiny to protest ongoing trials against military leaders. This amnesty law is a case of norms that are democratically legitimate in principle, yet tarnished by illegitimate pressure from military forces.

Lastly we have the case of Uruguay. Here, the amnesty norm was dictated within the context of full civil and political liberty, albeit affected by reasonable fears generated by events in neighboring Argentina and by the pressure (in many cases unacceptable) exerted by the Uruguayan military (although not in the form of attempted coups, as was the case of Argentina). The legitimacy of the norm in question is notably reinforced, however, by having been twice approved by popular votes, which are understood to be the highest expression of popular sovereignty. In this case, then, we can speak of a norm that is democratically legitimate to a significant degree.

The differences that separate the self-amnesty of the Argentine military dictatorship and the Uruguayan Expiry Law are enormous, and warrant at the very least careful and disciplined study. The IACtHR should have made a special argumentative effort in its decision to draw distinctions between amnesty laws. It should have done so not merely for the sake of academic or theoretical pretensions, but rather out of respect for the significance of what it means for the citizenry to reach that level of democratic agreement.

In fewer than ten lines, and basically without offering any argument, the IACtHR in Gelman overruled a decision of the Uruguayan Congress that had been ratified by the popular opinion of more than 50% of the population expressed through clean and direct means. What we would call the problem of democratic pedigree was thus clearly laid out in its most serious form.

Rights: The Problem Of Disagreement And Distrust Of Majorities

One could try to defend the Gelman judgment by stating that it was simply impossible for the tribunal to do something different, given the legal requirements established by the American Convention of Human Rights. The problem with this claim is that we have (and will always have) radical yet reasonable disagreements about the rights we wish to protect. It would be reassuring to be able to agree upon one definitive selection among all possible combinations of rights that could be consecrated through inclusion in a legal instrument in a way that would render them unconditional and inviolable by majority decision. In reality we disagree over what those rights should be, and what their content and contours are. Our life in society is decisively marked by reasonable and persistent differences of opinion with regards to justice and rights.[10]

This “fact of disagreement,” as Jeremy Waldron calls it, does not mean that we must renounce the idea of rights; nor does it imply that we must simply collapse rights under the idea of democracy. What it implies, rather, is that the opposite strategy is objectionable: we should not simply treat the idea of rights as isolated from or lacking any contact whatsoever with the notion of majority rule. Indeed, the pretension of completely separating the discussion of rights from the mechanism of majority rule is belied by judicial procedure itself: the Inter-American Court, like many high courts, frequently publishes dissents and concurrences alongside majority opinions, attesting to the existence of reasonable internal disagreement. Further, precisely due to this internal disagreement, these courts rely on majority rule as the means of settling their disagreements.

In refusing to consider the democratic legitimacy of the law, the IACtHR seems to make two problematic assumptions. First, it seems to associate majority rule with a tendency to make irrational or unreasoned decisions and, second, it seems to associate the judicial branch with rational and reasoned decisions. These assumptions regarding the inherent irrationality of majorities and the consequent necessity of judicial control appear to be what has made it possible for courts such as the IACtHR to affirm, with conviction, that the issue of rights must belong to the exclusive competency of the judiciary. The courts either consider irrelevant the fact that an amnesty law was approved in a democratic regime and further ratified by the citizenry on two occasions; or else they qualify the legislation of the Uruguayan Congress, the referendum, and the plebiscite, as merely “formal” expressions completely lacking importance when evaluating the validity of the law.

This kind of reasoning is exemplified by the way in which the IACtHR justifies its conclusion that the Expiry Law violates the American Convention on Human Rights. The problem with the Expiry Law, the Court holds, is that the States are obligated to “penalize” persons responsible for serious crimes. According to the IACtHR, this obligation emanates from “the obligation of guarantee exalted in Article 1.1 of the American Convention.” The Court reads Article 1.1 as obliging States to “prevent, investigate, and punish all violations of the rights recognized by the Convention.”[11]

Yet when one reads Article 1.1 of the American Convention, one does not find any iron-clad, detailed series of obligations. Article 1.1 of the Convention reads as follows:

“The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.”

In sum, one of the principle reasons advanced by the IACtHR for condemning Uruguay for its failure to respect international human rights law is based on an Article of the Convention that nowhere makes explicit reference to obligations to “prevent,” “investigate,” “punish,” and “repair the damage caused by the violation of human rights”—obligations that, according to the IACtHR, Uruguay did not meet.[12] These obligations derive from a judicial interpretation that is legally controversial, even as it contradicts the democratic will of the Uruguayan Congress and citizenry.

Conclusion: A Few Final Words About The Future

I want to conclude this essay with a few words about the future and where to go from where we are. And I want to do so by (very briefly) engaging with the views offered by my colleagues writing in this same AJIL Unbound Symposium.

In the previous paragraphs, I have offered reasons for skepticism concerning the work of the IACtHR, particularly taking into account the way in which the tribunal understands democracy. In this specific respect my view does not coincide with the more optimistic view offered by Judge Eduardo Ferrer Macgregor on the topic.[13] Instead of praising the legitimacy and content of the IACtHR’s decisions, I think we need to assume a more critical approach to the tribunal’s work and position. Unfortunately, however, I do not think that we can “remedy” the problems we face by asking the IACtHR to work together or more in line with domestic courts, as my good friend and distinguished scholar Ariel Dulitzky believes.[14] The main difficulty we face is not that the IACtHR is not sufficiently respectful or attentive to local judiciaries, but rather that it is not sufficiently respectful to democracy or, more precisely, to what local communities democratically decide.

Note, however, that in this work I have not wanted to defend a simplistic or shallow understanding of democracy, but rather a strong conception of it. For this reason, I believe that decisions like the amnesty decisions adopted in Uruguay, after a long and careful process of collective deliberation deserve special deference from courts. Of course, what I say about these kinds of cases does not apply to other local decisions that have not been the result of similarly strong democratic procedures.

Finally, I am also not totally persuaded by what Armin von Bogdandy, another distinguished scholar and good colleague, has said in this respect.[15] Professor von Bogdandy praises the gradual emergence of a ius constitucionale commune in Latin America—a group of norms that are widely shared by member states in the region, mainly thanks to the activity of the regional (international and local) courts. As a description of the legal situation in Latin America, his claim seems at least partially right. The emerging dialogue between courts of different countries that is taking place in the region is creating a shared amalgam of fundamental rights law. Of course, we may like this result and we may even have some reasons to praise it. But how should we evaluate those developments from a democratic perspective? The answer, I believe, should not be positive or enthusiastic. The law, whether it be local, national, or international, should be the product of profound, deliberated, democratic agreements, rather than the result of judicial decisions. Of course, judges are an integral part of the democratic process, and should help us in the construction of democratic laws. But the content of democratic laws should be fundamentally the product of collective, “horizontal agreements,” and not the result of “vertical impositions” of the judicial or political type.

[4] The growth in the use of Amnesty in recent decades was due to the serious wave of breakdowns in democracy and the massive human rights violations that resulted from them, especially during the 1970s and 80s. It also reflects the political and economic inequality that has affected the region throughout modern history, and which results in the presence of a small number of actors who possess enormous influence over democratically-chosen political authorities.

[5] Here I associate the (democratic) legitimacy of a norm simply with the degree of inclusivity and public debate that has characterized it up to the moment of its implementation. In accordance with this criterion, a norm that is promulgated under a dictatorship is typically assigned the lowest degree of legitimacy. See Carlos Nino, La Validez del Derecho (1987). See also Bruce Ackerman, 1 We The People (1993).

[9] Herein arises an objection that my colleague Victor Abramovich, who served as Vice-President of the Inter-American Commission of Human Rights, has often brought up. The Abramovich objection starts with the idea that the countries of the region also “democratically” affirmed their participation in the human rights treaties that the courts—whose authority has thus been “democratically” recognized—are now obliging those countries to respect. In other words, the objection draws attention to the democratic pedigree of the decisions to which I object using arguments of the same caliber. The objection, however, does not strike me at all as convincing. The act of setting up and putting into operation a high court does not preclude debate over what that court can decide or the modalities and authority of those decisions, but rather inaugurates it.

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